CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 18 juin 2002

.s800EAC49 { font-size:12pt } .s5FFF0A77 { margin-top:0pt; margin-bottom:0pt; font-size:1pt } .sBB9EE52A { font-family:Arial } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .s94935B0F { width:389.85pt; display:inline-block } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s75AF5381 { font-family:Arial; font-size:8pt; display:none } .s6B505E72 { margin:0pt; padding-left:0pt } .s4060989B { margin-left:10.52pt; text-align:justify; padding-left:7.48pt; font-family:serif } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sD3427EA2 { font-family:Arial; font-weight:bold; font-style:italic; text-decoration:underline } .sA36B60A1 { font-family:Arial; font-style:italic } .sCB27B9E { width:16.66pt; display:inline-block } .sC5412BEF { width:51.05pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .s3133A7C8 { font-family:Arial; color:#0069d6 }   EUROPEAN COURT OF HUMAN RIGHTS     320   18.6.2002   Press release issued by the Registrar   CHAMBER JUDGMENT IN THE CASE OF ONERYILDIZ v. TURKEY   The European Court of Human Rights has today notified in writing a Chamber judgment [1] in the case of Öneryıldız   v. Turkey (no. 48939/99).   The Court held by 5 votes to 2, that there had been a violation of Article 2 (right to life) of the European Convention on Human Rights on account of the death of the applicant’s relatives and the ineffectiveness of the judicial machinery; by 4 votes to 3, that there had been a violation of Article 1 of Protocol No. 1 (protection of property); and unanimously, that there was no need to examine the applicant’s other complaints.   Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicant 154,000 euros (EUR) for pecuniary and non-pecuniary damage and EUR 10,000 for costs and expenses, less the EUR 2,286.50 already received from the Council of Europe. (The judgment is available only in French).   1.     Principal facts   The applicant, Maşallah Öneryıldız, is a Turkish national, who was born in 1955. At the material time he and the twelve members of his family were living in the shanty town of Hekimbaşı Ümraniye (Istanbul).   The shanty town of Hekimbaşı comprised a collection of slums haphazardly built on land surrounding a rubbish tip which had been used jointly by four district councils since the 1970s and was under the authority and responsibility of the main City Council of Istanbul. An expert report drawn up on 7 May 1991 at the request of the Üsküdar District Court, to which the case had been referred by the Ümraniye District Council, drew the authorities’ attention to, among other things, the fact that no measure had been taken with regard to the tip in question to prevent a possible explosion of the methane gas being given off by the decomposing refuse. The report gave rise to a series of disputes between the mayors concerned. Before the proceedings instituted by either of them had been concluded, a methane-gas explosion occurred on 28 April 1993 on the waste-collection site and the refuse erupting from the pile of waste buried eleven houses situated below it, including the one belonging to the applicant, who lost nine members of his family.   Criminal and administrative investigations were carried out into the case, following which the mayors of Ümraniye and Istanbul were brought before the courts, the former for failing to comply with his duty to have the illegal huts surrounding the said tip destroyed and the latter for failing to make the rubbish tip safe or order its closure, despite the conclusions of the expert’s report of 7 May 1991. On 4 April 1996 the mayors in question were both convicted of “negligence in the exercise of their duties” and sentenced to a fine of 160,000 Turkish liras (“TRL”) and the minimum three-month prison sentence provided for in Article 230 of the Criminal Code, which was, moreover, commuted to a fine. The court ordered a stay of execution of those fines.   Subsequently, the applicant lodged, on his own behalf and on the behalf of his three surviving children, an action for damages in the Istanbul Administrative Court against the authorities which he deemed liable for the death of his relatives and the destruction of his property. In a judgment of 30 November 1995, the authorities were ordered to pay the applicant and his children TRL 100,000,000 in non-pecuniary damages and TRL 10,000,000 in pecuniary damages (the equivalent at the material time of approximately 2,077 and 208 euros respectively), the latter amount being limited to the destruction of household goods.     2.     Procedure and composition of the Court   The application was lodged on 18 January 1999 and declared admissible on 22 May 2001. A hearing was held on 16 October 2001.   Judgment was given by a Chamber of 7 judges, composed as follows:   Elisabeth Palm (Swedish), President, Wilhelmina Thomassen (Dutch), Gaukur Jörundsson (Icelandic), Riza Türmen (Turkish), Corneliu Bîrsan (Romanian), Josep Casadevall (Andorran), Rait Maruste (Estonian), judges,   and also Michael O’Boyle , Section Registrar .   3.     Summary of the judgment [2]   Complaints   The applicant complained, under Article 2 (right to life) of the Convention, that the accident on 28 April 1993, in which nine members of his family died, had occurred as a result of negligence on the part of the relevant authorities. He complained of the deficiencies in the administrative and criminal proceedings instituted subsequently. The applicant also alleged a breach of Article 6 § 1 (right to a fair hearing within a reasonable time) and of Article 13 (right to an effective remedy) on account of the excessive length of the proceedings and the lack of fairness of the proceedings for compensation brought in the administrative courts. He further maintained that there had been a breach of Article 8 (right to respect for private and family life) on account of the extremely distressing situation in which he had found himself. Lastly, relying on Article 1 of Protocol No. 1 (protection of property), he complained of the loss of his house and all his movable property.   Decision of the Court   Article 2 of the Convention   Responsibility on account of the death of Mr Öneryıldız’s relatives Regarding the implementation of preventive measures in respect of the rubbish tip serving Ümraniye and the neighbouring slum areas, the Court noted that relevant protective regulations did exist. The expert report of 7 May 1991 referring to the health hazards and risks of explosion showed that the rubbish tip did not comply with certain technical standards because the local and ministerial authorities had failed to take the measures required by the relevant regulations. Admittedly, some decontamination work had been commenced in 1989 but the Court noted that it had been stopped by order of a court, i.e. a State organ, whose decision had prolonged the deplorable situation with regard to the rubbish tip. The Court considered that the expert report of 1991 had merely highlighted a situation of which the municipal authorities were supposed to have knowledge and be in control, especially as there were specific regulations which had not been complied with. The Court found that although the national authorities had not encouraged the applicant to set up home near the rubbish tip, they had not dissuaded him from doing so either. It noted the extent of the authorities’ negligence and found it to be established that there had been a causal link between their negligence and the accident.   On the question of the public’s right to information, the Court held that an ordinary citizen could not be expected to know of the specific risks linked to the process of methanogenesis and landslides since that type of information could only be disseminated by action on the part of the administrative authorities. In the instant case there had been no action of that type.   The Court accordingly held that the administrative authorities had known or should have known that the inhabitants of certain slum areas had been faced with a real threat, and had failed to remedy the situation and not done all that could reasonably have been expected of them to avoid the risks in question. Moreover, they had failed in their duty to inform the inhabitants of the area of those risks.   The Court found that there had been a violation of Article 2, unless the applicant’s complaints could be deemed to have been remedied in the domestic proceedings by the effective implementation of the appropriate judicial machinery.   Redress offered by legal remedies: compliance with the requirements deriving from the procedural obligation inherent in Article 2 The Court noted that administrative and criminal proceedings had been brought against those responsible for the accident and that they had ended with a fine and a conviction respectively.   With regard to the criminal proceedings, the Court observed that the Istanbul Criminal Court had sentenced the two mayors to a fine – with a stay of execution – of the equivalent of EUR   9.70 for negligence in the exercise of their duties. It noted that the allegations set out in Mr Öneryıldız’s complaint and the public prosecutor’s decision had been based on the notion of homicide through negligence. Once the case had been transmitted to the investigating administrative authorities, however, the facts had no longer been considered from the angle of a possible breach of the right to life; that, in the Court’s opinion, had weakened the substance of the investigation carried out thus far in that the subject of the trial had been limited to “negligence” as such. Furthermore, the negligible amount of the fines to which the defendants had been sentenced showed that the tribunals of fact had been unaware of the degree of seriousness of the events. Such reticence on the part of the criminal courts had been tantamount, the Court found, to granting virtual impunity to the mayors, from which the Court concluded that the criminal proceedings, as conducted, could not be considered to have been an adequate and effective remedy.   The same was true of the administrative proceedings. The Court noted that Mr Öneryıldız’s right to compensation had not been acknowledged until four years, eleven months and ten days after his first claims for compensation had been dismissed and that the compensation awarded to him of EUR 2,077 (which was a questionable amount) had not yet been paid.   It therefore held that the legal remedies used in the domestic proceedings had not complied with the requirements deriving from the procedural obligation under Article 2.   Accordingly, the Court held that there had been a violation of Article 2 of the Convention on account of the death of Mr Öneryıldız’s relatives and the ineffectiveness of the Turkish judicial machinery as implemented.   Article 1 of Protocol No. 1 to the Convention   The Court considered that the fact that the applicant had occupied land owned by the Treasury for five years could not be deemed to be a possession and that there was no basis on which to conclude that he had a valid claim to a transfer of title to the land. However, although it had been shown that the dwelling built by the applicant on that land had been erected in breach of the town-planning regulations, the Court held that Mr Öneryıldız had been the de facto owner of the main structure and component parts of the slum and of any personal effects that might be there. In the Court’s opinion, the dwelling constructed and the fact that the applicant had lived in it with his family represented a substantial pecuniary interest which, tolerated as it was by the authorities, amounted to a possession for the purposes of Article 1 § 1 of Protocol No. 1.   The Court found that the real and effective exercise of the right laid down in Article 1 of Protocol No. 1 could require positive measures of protection. It held that the accumulation of omissions by the administrative authorities, who had failed to take all measures necessary to prevent the risk of an explosion, and thus the resulting landslide, constituted a clear infringement of the applicant’s right to peaceful enjoyment of his possessions, which could be construed as an “interference”. Since those negligent omissions by the authorities had been penalised under Turkish administrative and criminal law, the Court concluded that the interference had been manifestly contrary to domestic law.   With regard to the issue whether the applicant’s complaint had been remedied under domestic law, the Court noted that in a judgment of 30 November 1995 he had been awarded the equivalent of EUR 210 in compensation for pecuniary damage. It considered that, in finding that the dwelling had not been supplied with electricity – without checking the actual situation in that area – the administrative court had been prejudiced. The Court also reiterated its conclusion above to the effect that the applicant’s right to compensation had not been acknowledged within a reasonable time. Accordingly, it could not accept that the applicant’s claims for pecuniary damages had been carefully and expeditiously examined with a view to awarding him proportionate compensation, given that in the present case there had not been any recognition by the tribunals of fact of the administrative authorities’ liability in respect of the applicant’s complaint of loss of his possessions. Lastly, the Court pointed out that the authorities had not yet made any payment to the applicant.   The Court therefore concluded that the national authorities could not be deemed to have acknowledged – and subsequently compensated – the alleged violation, and that there had therefore been a breach of Article 1 of Protocol No. 1.   Judges Casadevall, Türmen and Maruste expressed a partly dissenting opinion, which is annexed to the judgment.   ***   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Registry of the European Court of Human Rights F – 67075 Strasbourg Cedex Contacts:   Roderick Liddell (telephone: (0)3 88 41 24 92)   Emma Hellyer (telephone: (0)3 90 21 42 15) Fax: (0)3 88 41 27 91   The European Court of Human Rights was set up in Strasbourg in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. On 1 November 1998 a full-time Court was established, replacing the original two-tier system of a part-time Commission and Court. [1] Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its Protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.     [2] .     This summary by the Registry does not bind the Court.